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Candy Clay v. Commissioner of Social Security

April 15, 2013

CANDY CLAY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

In this action, plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner").*fn1 After plaintiff turned 18, the Commissioner re-determined plaintiff's eligibility for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act") based on the rules for determining disability in adults, and found that plaintiff's disability had ended on May 1, 2009. In her motion for summary judgment, plaintiff contends that the Commissioner erred in determining that plaintiff's disability had ceased. (Dkt. No. 14.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 15.) Thereafter, plaintiff filed a reply brief. (Dkt. No. 16.) For the reasons that follow, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and enters judgment for the Commissioner.

I. BACKGROUND

Plaintiff was born on August 9, 1990, has an eleventh grade education, and has no past relevant work.*fn2 (Administrative Transcript ("AT") 20, 35, 91-94.) She received SSI benefits under Title XVI of the Act as a disabled child, primarily due to asthma and a learning disorder. (AT 207-19.) After plaintiff turned 18, her eligibility for these benefits was redetermined under the rules for determining disability in adults, and on May 8, 2009, the Commissioner found that plaintiff was no longer disabled as of May 1, 2009. (AT 10, 91, 95-98.) On May 12, 2010, this determination was upheld upon reconsideration after a hearing before a state agency disability hearing officer. (AT 10, 115-24.) Subsequently, plaintiff requested a hearing before an administrative law judge ("ALJ"). (AT 10, 132-34.)

ALJ Theodore Slocum conducted three hearings in this case. At the first October 7, 2010 hearing, the case was continued to allow plaintiff to obtain representation. (AT 78-87.) At the second December 7, 2010 hearing, the case was again continued to obtain further medical records from plaintiff's treating providers. (AT 67-77.) A third hearing was conducted on January 27, 2011. (AT 29-66.) Plaintiff did not obtain counsel at the administrative level, and appeared at all three hearings without counsel. (AT 10.) After the three hearings, ALJ Slocum became temporarily incapacitated, and the case was reassigned to ALJ Joseph De Pietro. (Id.) After ALJ De Pietro reviewed the record, as well as the instructions/notes by ALJ Slocum, ALJ De Pietro determined that another hearing was not required. (Id.) ////

In a decision dated May 12, 2011, ALJ De Pietro determined that plaintiff's disability had ended on May 1, 2009, and that plaintiff had not become disabled again since that date. (AT 21-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on February 7, 2012. (AT 1-3.) Thereafter, plaintiff filed this action in federal district court on March 8, 2012, to obtain judicial review of the Commissioner's final decision. (Dkt. Nos. 1-3.)

II. ISSUES PRESENTED

Plaintiff has raised the following issues: (1) whether the ALJ failed to adequately develop the record; (2) whether the ALJ improperly weighed the medical and psychological opinion evidence; (3) whether the ALJ erroneously found that plaintiff did not have a severe mental impairment; (4) whether the ALJ erred in determining that plaintiff did not meet a listing; and (5) whether the Appeals Council erred in not remanding the case to the ALJ.*fn3

III. LEGAL STANDARD

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

IV. DISCUSSION

A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to SSI pursuant to the Commissioner's standard five-step analytical framework for determining eligibility for adults who file new applications.*fn4

The first step of the sequential evaluation process, which pertains to substantial gainful activity, is not used for redetermining disability at age 18. (AT 11); see also 20 C.F.R. § 416.987(b). At step two, the ALJ determined that, since May 1, 2009, plaintiff has had the following severe impairment: asthma. (AT 12.) However, at step three, the ALJ determined that, since May 1, 2009, plaintiff did not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 17.)

Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:

After careful consideration of the entire record, the undersigned finds that since May 1, 2009, the claimant has had the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except she must avoid even moderate exposure to fumes, odors, dust, gases, poor ventilation, etc. (AT 18.)

At step four, the ALJ found that plaintiff had no past relevant work. (AT 20.) At step five, the ALJ noted that plaintiff was a younger individual age 18-49, had a limited education, and was able to communicate in English. (Id.) The ALJ then found that, since May 1, 2009, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (Id.) The ALJ relied on the testimony of a vocational expert ("VE"), who testified that plaintiff would be able to perform the following representative occupations: (1) day worker, an unskilled medium exertional level occupation with 5,300 positions in the Sacramento area, 95,000 positions in California, and 887,000 positions nationally; (2) factory worker, an unskilled medium exertional level occupation with 1,000 positions in the Sacramento area, 23,400 positions in California, and 409,000 positions nationally; and (3) bench assembler, an unskilled light exertional level occupation with 290 positions in the Sacramento area, 34,000 positions in California, and 218,000 positions nationally. (AT 21.)

Accordingly, the ALJ concluded that plaintiff's disability had ended on May 1, 2009, and that plaintiff had not become disabled again since that date. (AT 21.)

B. Plaintiff's Substantive Challenges to the Commissioner's Determinations

Before proceeding to plaintiff's specific arguments, the court finds it appropriate to summarize the pertinent medical and other documentary evidence.

A March 25, 2009 assessment report and other records from the Folsom Cordova Unified School District show that plaintiff was in 12th grade and in an individualized education program ("IEP") with deficits in the areas of auditory processing, sensory-motor skills, and cognitive abilities, including basic reading skills and reading comprehension. (AT 280-99.) The report indicated that plaintiff demonstrated "an inability to learn which cannot be explained by intellectual, sensory, or other health factors" and that the discrepancy between her predicted and actual achievement was "not primarily the result of a visual, hearing or motor impairment; mental retardation; a serious emotional disturbance; or environmental, cultural difference, or economic disadvantage." (AT 283.) The report also indicated that plaintiff's attendance was poor, but that her behavior was age appropriate, she had consistently tested in the low average range of intellectual ability, she had good verbal skills, she was capable of average performance in her classes if she applied herself, and that she needed to complete her Economics credits to graduate. (AT 281-82, 284-85.) Plaintiff was placed in general education classes and special education classes in a 50/50 ratio, was allowed extended time for completing tests and assignments, and was permitted to have test questions read aloud to her or presented with the use of an audio CD. (AT 287, 290, 293.)

On March 31, 2009, plaintiff was evaluated by consultative examining psychologist Dr. Janice Nakagawa. (AT 300-03.) Plaintiff reported that she had learning problems, had been in special education classes all her life, and had received treatment for asthma with a "breathing machine." (AT 300.) Dr. Nakagawa reviewed plaintiff's previous treatment notes from the Molina Clinic, which indicated "possible anxiety and treatment for asthma." (Id.) During the evaluation, plaintiff stated that she did not know where she was born or raised, she did not know if her mother worked (despite plaintiff having daily contact with her), she did not know where her father lived (despite plaintiff reporting contact with him a couple of days prior to the assessment), and she had "five or four brothers" but did not know their ages. (Id.) Plaintiff stated that she lived with her brother and sister-in-law, who prepared her meals and took her to school, and that she did not do any chores, but only did some homework and watched TV. (AT 301.) Plaintiff initially claimed not to know her height, did not know her weight, gave "grossly inaccurate responses" to the date and sequence of days in a week, did not know the shape of a ball, and claimed that birds have no legs. (Id.) Plaintiff stated that she had received counseling and anger management classes, but did not remember when or why. (Id.)

Dr. Nakagawa described plaintiff as a "vague, imprecise informant with the impression she was making efforts to present in a negative light," noting that there was "hesitancy in her response style to emphasize limitations and had a contrived element." (AT 300-01.) Plaintiff's mood was quiet and her affect non-labile. (AT 301.) During cognitive and memory testing, plaintiff "put forth very limited, inconsistent effort in all testing with the impression she presented in the worst possible light for secondary gain." (Id.) Dr. Nakagawa declined to report plaintiff's IQ scores because of malingering, and opined that the test data was considered unreliable and invalid. (AT 301-02.) Indeed, plaintiff's performance on all of the tests administered suggested malingering, which was confirmed by Dr. Nakagawa's administration of the Test of Memory Malingering ("TOMM"), described by Dr. Nakagawa as the "well-normed test to screen for malingering" and that produced results consistent with malingering. (AT 302-03.) Consequently, Dr. Nakagawa diagnosed malingering and stated that it was impossible to provide any accurate assessment or opinion about plaintiff's functional capabilities with respect to work. (AT 303.)

Thereafter, on April 1, 2009, plaintiff also underwent a complete internal medicine evaluation by consultative examining physician Dr. Joseph M. Garfinkel. (AT 304-08.) Plaintiff's chief complaints were listed as lower back pain and asthma -- she reported having asthma attacks every week or two and frequently using an inhaler. (AT 304.) She described her back pain as non-radiating -- worse with lying on the ground and stretching and better with medication -- and indicated that she did not use an assistive device. (Id.) Dr. Garfinkel reviewed plaintiff's prior medical records and performed a physical examination. (AT 305.) With respect to plaintiff's lungs, he noted that her breath sounds were symmetric, there were no rhonchi or rales, and the expiratory phase was within normal limits. (AT 306.) Plaintiff had no chest tenderness, and cardiovascularly had normal heart sounds and no murmur. (Id.) Dr. Garfinkel found that plaintiff had mostly normal range of motion, a normal straight leg raising test, no back spasm, good tone bilaterally with good active motion, 5/5 strength in all extremities, intact sensation, normal reflexes, and a normal gait, and plaintiff was able to stand and walk on heels and toes. (AT 306-07.) Dr. Garfinkel diagnosed plaintiff with chronic back pain (possibly lumbosacral strain) and a history of asthma. (AT 307.) He opined that plaintiff could lift or carry 50 pounds occasionally and 25 pounds frequently; stand or walk for 6 hours in an 8-hour day; and sit for 6 hours in an 8-hour day. (AT 308.) He assessed no postural, manipulative, visual, communicative, or environmental limitations. (Id.)

On April 8, 2009, state agency physician Dr. DeSouza reviewed the record evidence and opined that plaintiff physically had no exertional limitations. (AT 311-15.) However, Dr. DeSouza assessed environmental limitations -- in particular, that plaintiff should avoid concentrated exposure to extreme heat, fumes, odors, dusts, gases, poor ventilation, etc. (AT 314.)

On May 7, 2009, state agency psychologist Dr. Norman Zukowsky also reviewed plaintiff's records, including records from Molina Medical Center and plaintiff's psychological and internal medicine consultative evaluations. (AT 316-30.) Dr. Zukowsky stated that there was insufficient evidence to make a determination regarding plaintiff's mental ...


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